.XXX Domains - A Big Bust?

While this squatter concept has not existed among U.S. trademarks, it did have precedent in foreign countries. Back when I started practicing trademark law, it was not at all uncommon for a client to call up (they called up back in the 80’s) to say they just found out from their subsidiary in Peru that someone had registered their U.S. trademark there and the foreign owner demanded a ransom to return rights in that mark. A combination of new trademark treaties between countries, the speed of electronic communications, and companies’ heighted trademark sophistication over the past decades has significantly changed, but not eliminated, that problem. We have had to reclaim more than one trademark from squatters for entertainment industry clients over the past several years.

So when the .XXX domain was invented, the idea was to keep porn purveyors in their own pornographic ghetto. Forget the fact that they thrive on accidental traffic, and by owning variations of names in the .com and other arenas, and people stumble upon their sites. The big push to buy .xxx domain name registrations actually targeted legitimate brand owners. Brand owners thought they’d learned their lesson from prior hijackings. “Ah, not this time,” they said. “We’ll register our names before someone uses pepsi.xxx for evil instead of good.” Seemingly half of all .XXX’s are owned by brand name companies and institutions, including universities, who thought an ounce of prevention would save them from chasing after unholy uses of their names.

The XXX people apparently felt that they did not want to belong to any club that would have them as a member. Sure, there are over 100,000 XXX sites which have registered their adult sites under the .XXX domain, according to some published reports. But there’s no evidence that anyone has profited from this .XXX domain, except those companies which sell domain name registrations, who made a huge windfall from the fear factor.

Photo-still from "Airplane!" (photocredit: Wikipedia)

The domain registrars may think this has been a success, but for business in general, the answer could well be "Surely you can't be serious."